10th IUCN Academy of Environmental Law Colloquium

10th IUCN Academy of Environmental Law Colloquium
More than 250 environmental experts from 35 countries gather at the University of Maryland for the 10th Colloquium of the IUCN Academy of Environmental Law in July 2012

March 2013 Environmental Field Trip to Israel

March 2013 Environmental Field Trip to Israel
Maryland students vist Israel's first solar power plant in the Negev desert as part of a spring break field trip to study environmental issues in the Middle East

Workshop with All China Environment Federation

Workshop with All China Environment Federation
Participants in March 12 Workshop with All China Environment Federation in Beijing

Winners of Jordanian National Moot Court Competition

Winners of Jordanian National Moot Court Competition
Jordanian Justice Minister Aymen Odah presents trophy to Noura Saleh & Niveen Abdel Rahman from Al Al Bait University along with US AID Mission Director Jay Knott & ABA's Maha Shomali

Sunday, July 25, 2010

UMD Clinic Victory in Poultry Suit, Senate Drops Climate Bill Vote, China Passes U.S. in Energy Consumption but Plans Carbon Trading, Trafigura Liable

On Tuesday July 20, U.S. district judge William M. Nickerson gave the Maryland Environmental Law Clinic a key preliminary victory in its lawsuit against Perdue Farms Inc. for polluting the Chesapeake Bay through illegal disposal of chicken waste. The judge rejected Perdue’s claim that because the farmers it contracts with to raise chickens are the actual NPDES permit holders, Perdue should be exempt from liability for violations of the Clean Water Act (CWA). Instead, the court held that “integrators” like Perdue could be held liable for violations of the CWA because of their level of control over the farmers who raise the integrator’s chickens. As a result of this decision,, the case will proceed to trial on the merits. This lawsuit is what sparked efforts by the poultry industry to have the Maryland clinic’s funding cut by the Maryland General Assembly, as resported in this blog on March 28 2010, a move that backfired badly when the national legal community came to the defense of the clinic. A copy of this decision is available on my parallel blog at: www.globalenvironmentallaw.com (July 25th post).

Senate majority leader Harry Reid (D-Nev) announced this week that he will abandon efforts to have the U.S. Senate vote on cap-and-trade legislation to control greenhouse gas (GHG) emissions this year. Senator Reid concluded that there is not enough time to round up the necessary votes to pass such legislation, which cleared the House in June 2009. This is disappointing to environmentalists, particularly since it comes at a time when Washington, D.C. is experiencing a record heat wave and the Gulf states are enduring the worst environmental catastrophe in U.S. history due to the BP oil spill. If this legislation cannot pass under these circumstances, it seems likely that EPA will be left to regulating GHG emissions under the old Clean Air Act, which is not ideally suited to accomplishing this goal.

Ironically, Senator Reid’s decision was announced just as the governments of the two countries with the greatest carbon emissions per unit of energy use - the Australian and Chinese governments -- announced plans to limit their countries’ GHG emissions. On Friday new Australian Prime Minister Julia Gillard announced that companies would get credit for early reduction in carbon emissions prior to the adoption of comprehensive cap-and-trade legislation. The Chinese government revealed that it plans to establish a program for trading carbon allowances as part of its next five-year plan in order to meet its Copenhagen Accord commitment to reduce China’s energy intensity. Li Jing, Carbon Trading in Pipeline, China Daily, July 22, 2010 (http://www.chinadaily.com.cn/bizchina/2010-07/22/content_11034422.htm). Australia emits more than one kilogram of CO2 for every kilowatt hour of energy it uses, while China emits more than 0.85 kgCO2/kWh. By contrast the U.S. emits only 0.6 kgCO2/kWh. Slash Bills and Save the World, Financial Times, July 17-18, 2010.

Last week the International Energy Agency (IEA) announced that in 2009 China had passed the U.S. as the world’s leading consumer of energy. The IEA estimates that China used 2.252 billion tons of “oil equivalent,” 4 percent more than the U.S. which consumer 2.17 billion tons. However, on a per capita basis China’s consumption is only about a third of that of most industrialized nations, according to the IEA. The China government disputed the IEA’s calculations, claiming that China used only 2.146 billion tons, leaving the U.S. as the leading energy consumer. The IEA responded that China has not provided adequate data to substantiate its claim.

On Tuesday July 20 I had dinner with a delegation of ten Chinese judges, journalists, lawyers and environmental officials who are visiting the United States on a tour arranged by the Beijing office of the Natural Resources Defense Council (NRDC). The delegation had visited EPA’s Environmental Appeals Board to watch an argument in a case involving the application of the Rapanos decision in an EPA enforcement action. On Wednesday the group headed to New York to visit NRDC’s headquarters and to meet with U.S. Court of Appeals Judge Denny Chin, the newest member of the Second Circuit. China currently is battling a major oil spill of its own as a result of a pipeline explosion in Dalian. The spill has made the Chinese public painfully aware of the inadequacy of existing oil spill response efforts. As a result of the Chinese spill, I wrote a new version of the article I had written last week about the BP oil spill for a weekly Chinese news magazine in Guangzhou.

On Friday July 23 a court in the Netherland imposed a fine of one million Euros on the oil trading firm Trafigura for illegal export of hazardous wastes that killed 16 people and injured thousands of others in the Ivory Coast in 2006. The court ruled that Trafigura had acted illegally when the ship it had hired to transport the waste - the Probo Koala -- left the port of Amsterdam with the waste after balking at the cost of disposing it in the Netherlands. Trafigura previously had settled a lawsuit brought in London on behalf of the victims of the waste disposal in the Ivory Coast as discussed in the blog post of September 20, 2009.

On Tuesday July 20 the Senate Judiciary Committee approved the nomination of Elena Kagan to be an Associate Justice of the U.S. Supreme Court by a vote of 13-6. At her confirmation hearings the few questions dealing with environmental issues involved two Supreme Court decisions: the Court’s 2008 decision in Exxon Shipping Co. v. Baker, which slashed the punitive damages Exxon must pay for the March 1989 Exxon Valdez oil spill, and the Court’s 2006 decision in Rapanos v. United States, which made it more difficult for the federal government to require a permit for developments affecting wetlands. Kagan seemed familiar with the former, but she stated that she had never read the Rapanos decision. Senator Franken volunteered to explain Rapanos to her, but then immediately realized that it would be futile.

On Thursday July 22 President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act. In addition to the provisions on conflict minerals and securities fraud litigation by foreigners discussed in this blog last week, the legislation boosts compliance with the formerly voluntary Extractive Industries Transparency Initiative (EITI) (see http://eiti.org/). Section 1505 of the legislation requires the Securities and Exchange Commission to issue regulations requiring companies developing oil, natural gas or minerals to disclose annually the type and total amounts of payments made to foreign governments in connection with such development projects. Section 750 of the legislation creates a new Interagency Working Group to oversee the development of carbon trading markets. The group is to consist of the Chairman of the Commodity Futures Trading Commission (CFTC), the Secretary of Agriculture, the Secretary of Treasury, the chairman of the SEC, the EPA Administrator, the chairman of FERC, the commissioner of the Federal Trade Commission and the administrator of the Energy Information Administration. They are to submit a study by January 2011 on how to ensure efficient, secure and transparent carbon markets. Section 751 of the legislation also requires the CFTC to establish a 9-member “Energy and Environmental Markets Advisory Commission.”

Sunday, July 18, 2010

BP Spill, Dodd-Frank legislation, Ecuador Oil Film Outtakes, Climate Data & IUCN E-Journal (BY BOB PERCIVAL)

This week I wrote an article about the BP oil spill in the Gulf of Mexico for Southern Weekly, a publication based in Guangzhou, China. The article, which was translated into Chinese, explored why such an environmental catastrophe could occur in U.S. waters despite the U.S. having one of the world’s best developed systems of environmental law. It also examined what lessons China can learn from the spill. On Monday July 12 Interior Secretary Salazar issued a new moratorium on new deepwater drilling activities until November 30. The moratorium is a more refined version of the May 27 moratorium that has been blocked by a federal district judge in New Orleans. Instead of applying to all new drilling activities in waters 500 feet deep or more, it applies to the 33 deepwater wells using subsea blowout preventers or surface blowout preventers on a floating facility. On Thursday the House Natural Resources Committee approved an energy bill that included provisions responding to the BP oil spill. The Consolidated Land, Energy and Aquatic Resources Act (H.R. 3534) would replace the old Minerals Management Service with three separate entities: The Bureau of Energy and Resource Management (BERM), to manage leasing & permitting and conduct necessary environmental studies; The Bureau of Safety and Environmental Enforcement (BSEE), to conduct all inspections and investigations related to health, safety and environmental regulations; and The Office of Natural Resource Revenue (ONRR), to collect all offshore and onshore oil and gas and renewable energy-related revenues

The Senate passed the Dodd-Frank Wall Street Reform and Consumer Protection Act this week and it should be signed into law by President Obama soon. While this is not environmental legislation, it has a couple of provisions of interest for global environmental law. One is the provision on “conflict minerals” that initially was mentioned in this blog on May 23, 2010. Contained in Section 1502 of the legislation, the provision directs the SEC within 270 days of enactment to promulgate disclosure regulations concerning “conflict minerals”. These regulations will require publicly traded company using particular minerals as primary ingredients in their products to certify whether they originated in the Democratic Republic of the Congo or surrounding countries. The regulations are to require the companies to detail what steps they have taken to ensure that the minerals do not benefit armed groups in Africa. This represents an important precedent for efforts to encourage corporations to “green” their supply chains as it likely will require companies to hire independent private auditors to examine the source of the minerals they use.

Another provision in the legislation responds to the U.S. Supreme Court’s June 24 decision in Morrison v. Australian National Bank that applied the presumption against extraterritorial application of domestic law to bar Australian investors from suing an Australian bank for securities fraud in U.S. court even if the fraud occurred in connection with the banks’s purchase of a company based in the U.S. As a result of this decision, many foreign investors in BP will not be able to join investor lawsuits against the oil giant in connection with the Gulf oil spill unless they purchased their shares on U.S. stock exchanges. Michael Peel, Lawyers Scramble to Deal with BP Ruling, FInancial Times, July 13, 2010, at 17. The Dodd-Frank law expressly provides that U.S. courts shall have jurisdiction over actions brought by the SEC or the U.S. alleging securities fraud involving “conduct within the U.S. that constitutes significant steps in furtherance of the violation, even if the securities transaction occurs outside the United States and involves only foreign investors.” However, this provision only applies to securities fraud suits brought by the SEC or the federal government. With respect to suits by private investors, Section 929Y of Dodd-Frank directs the SEC to conduct a study to determine the extent to which the antifraud provisions of the Securities and Exchange Act of 1934 should be extended to allow such suits. The Dodd-Frank legislation is available online at: http://docs.house.gov/rules/finserv/111_hr4173_finsrvcr.pdf.

On Thursday July 15 the U.S. Court of Appeals for the Second Circuit modified a ruling issued in May that required documentary filmmaker Joe Berlinger to turn over outtakes from his film “Crude” concerning oil pollution in the Oriente region of Ecaudor allegedly caused by Chevron. Chevron has sought the outtakes to help it prove collusion between plaintiffs lawyers and court-appointed experts in the long-running Auginda litigation that has been the subject of several blog entries here (see May 31, 2009). The decision limits the amount of material that the filmmaker must turn over to Chevron. Instead of turning over all outtakes, Berlinger is required only to turn over outtakes in which counsel for the plaintiffs, court-appointed experts, or Ecuadoran government officials appear. A copy of the court’s order is available online at: http://www.crudethemovie.com/blog/wp-content/uploads/2010/07/7.15.10-ORDER.pdf Information on how to view the film, a trailer of which is online, is available at: http://www.crudethemovie.com/

New temperature data released by the National Oceanic and Atmospheric Administration show that the period from January to June 2010 has been the hottest ever recorded worldwide, eclipsing the previous record set in 1998. The year 2010 is on track to be the hottest year ever recorded. On Friday July 16 the National Research Council issued a report estimating that for every one degree increase in global temperatures rainfall will fall or rise between 5 and 10%, corn production will be reduced by the same amount, and wildfires will increased between twofold and fourfold. The report, Climate Stabilization Targets: Emissions, Concentrations and Impacts over Decades to Millenia, is available at: http://www.nap.edu/catalog.php?record_id=12877#toc Last week ministers from Germany, France and the UK endorsed sharper cuts in EU greenhouse emissions - a reduction of 30% by 2020 instead of the current 20% reduction target. They noted that the global recession has reduced the cost of a 30% cut by 22 billion Euros per year. Fiona Harvey, Ministers Seek Tougher Stance on Emissions, FInancial Times, July 15, 2010, at 3.

The IUCN Academy of Environmental Law’s new E-Jounral has been published online. It contains articles, book reviews, and valuable reports on developments in environmental law from experts in 18 countries. The E-Journal is available at: http://www.iucnael.org/index.php?option=com_content&view=article&id=97&Itemid=75&lang=en

On Tuesday my four research assistants and I visited the World Bank to attend a discussion of Bruce Rich’s book “To Uphold the World.” I’ve previously discussed the book, which seeks to promote a new global environmental ethic based on the work of the ancient Indian leaders Ashoka and Kautilya in my January 4, 2009 blog entry. A recent presentation of it by Bruce in the context of the BP spill is available online at: http://voices.washingtonpost.com/political-bookworm/2010/06/bp_and_a_global_ethic.html. Following a presentation by Bruce, Bill Drayton, the founder and CEO of Ashoka, and Cyprian Fisiy, director of the Social Development Department of the World Bank’s Sustainable Development Network, reacted to the book, which they both deemed an important contribution to environmental philosophy. Bill explained that his organization had chosen the name “Ashoka” because it was one of the few terms that was universally understood and respected in the developing world. Warren Evans, director of the Environment Department of the World Bank, moderated the discussion. Following the program my research assistants and I had dinner with EPA deputy general counsel Tseming Yang to discuss the progress of our work on the Global Environmental Law casebook.

Sunday, July 11, 2010

Int'l Envt'l Moot Court Problem, Mexico & Gulf Oil Spill, EPA Air Transport Rule (by Bob Percival)

On Wednesday July 7 Professor Roy Gardner released the 2010-2011 Stetson International Environmental Moot Court Competition problem. The problem, which is available online at: http://www.law.stetson.edu/tmpl/academics/bio/internal-1-sub.aspx?id=4642, involves an oil spill that sounds suspiciously like the Deepwater Horizon blowout in the Gulf of Mexico. In the problem the spill affects another country who initiates an action in the International Court of Justice after the oil company responsible for the spill files for bankruptcy and is unable to pay any compensation to the other country. Regional competitions will be held in Eastern North America, Western North America, North India, South India, Ireland and Southeast Asia. We also hope to have teams from Africa and the Middle East. Winners of the regional competitions will advance to the International Finals, which will be held at the University of Maryland School of Law on March 17-20, 2011.

Mexican authorities are bracing for possible damage to their country from the Deepwater Horizon oil spill. Luis Fueyo, director of Mexico’s National Commission of Protected Natural Areas, noted that oil from the spill already has reached Mexican waters, though it is still miles from shore. See Adam Thomson, Mexico Trains Public to Fight Oil Spill (http://www.ft.com/cms/s/0/abc74bb8-8aa9-11df-8e17-00144feab49a.html). Mexican authorities estimate that they already have spent $40 million preparing worst case contingency plans and training subsistence farmers and fishermen to help combat the spill if it moves closer to shore.

On Tuesday July 6 the U.S. Environmental Protection Agency proposed new regulations to reduce the transport of sulfur dioxide (SO2) and nitrogen oxide (NOx) from powerplants in 31 eastern states. Information about the proposed rule is available online at: http://www.epa.gov/airtransport/actions.html#jul10. The rule will require a 71% reduction in SO2 and a 52% reduction in NOx emissions over 2005 levels by 2014. EPA estimates that the rule will save between 14,000 and 36,000 lives annually, producing benefits of $120 to $290 billion per year for an annual cost of $2.8 billion. EPA has worked on this rule for more than a decade. The latest proposal is a response to a 2008 court decision that struck down a weaker version of the rule issued by the Bush administration in 2005. I was interviewed about the significance of the rule on the public radio program “Living on Earth.” The interview can be heard online at: www.loe.org. Click on the link “EPA Orders Power Plants to Clean Up”.

On Tuesday I was interviewed by Helge Joergens and Stefanie Korte, two researchers from the Freie Universitat Berlin, who are working on an important global environmental law project funded by the European Union, called the Consensus Project (see http://www.fp7-consensus.eu/) Their portion of this research is examining the factors that contribute to the dismantling of regulatory policy decisions and they are studying the U.S. experience with new source review as an example of this phenomenon.

I was delighted to hear this week from Kiantar Betancourt, one of my environmental law students, who is working for a law firm in Ascunsion, Paraguay this summer. He reports that a committee of the Paraguayan Congress has expressed interest in the possibility of adopting a unified environmental law code.

Sunday, July 4, 2010

GE Superfund Attack Rejected, Export-Import Bank, Heathrow & New Delhi Airports (by Bob Percival)

On Tuesday June 29 a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously rejected General Electric (GE) Company’s decade-old challenge to the constitutionality of EPA issuing administrative cleanup order under the Superfund program. GE’s lawsuit was part of a vigorous effort to contest EPA’s issuance of a unilateral administrative order (UAO) requiring GE to clean up PCB contamination in the Hudson River. GE claimed that the Superfund law (the Comprehensive Environmental Response Compensation and Liability Act (CERCLA)) denied it due process because the only avenue it provided for challenging the UAO was to decline to obey it and to face treble damages. The court ruled that this procedure for challenging UAOs was sufficient to provide the company with due process and that any consequential injuries from a negative market reaction to the challenge did not give rise to a due process violation. A copy of the court’s decision is available HERE.

One interesting aspect of GE’s quixotic efforts to have CERCLA struck down on constitutional grounds is the liberal icon who the company hired to spearhead its legal attack - Harvard law professor Laurence Tribe. While Tribe recently joined the Justice Department and thus did not represent GE in the latest round of litigation, he began work for GE more than a decade ago when it sought to have the Clean Air Act struck down on non-delegation grounds in Whitman v. American Trucking Associations. That challenge was unanimously rejected by the U.S. Supreme Court despite an impassioned plea from Tribe for the Court to resurrect the non-delegation doctrine and invalidate EPA’s revisions of the national ambient air quality standards for ozone and particulates. Professor Tribe was equally unsuccessful in using his prestige as one of the country’s top constitutional law professors to attack the Superfund program.

After voting on June 24 not to support a sale of coal-mining equipment to India on environmental grounds, the U.S. Export-Import Bank is now reconsidering its decision. The Bank’s board had voted 2-1 to refuse support to a $600 million purchase of coal-mining equipment by Reliance Power of India from U.S.-based Bucyrus International. After Bucyrus argued that the decision could cost 1,000 jobs in Wisconsin, the Bank board reportedly is reconsidering it.

On Thursday July 1 China’s new tort law took effect. In late May I participated in a conference in Beijing that focused on the new law (see May 31, 2010 blog post), which is designed in part to make it easier for plaintiffs to recover damages for environmental harm. The law allows plaintiffs to recover punitive damages against companies that harm them. On Wednesday June 30 the U.S. Senate Environment and Public Works Committee voted to amend the Oil Pollution Act to remove its $75 million limit on economic damages from oil spills.

A major environmental initiative by the United Kingdom’s new coalition government led by Conservative David Cameron and Liberal Democrat Nick Clegg has been its rejection of plans to add an additional runway to Heathrow Airport. This decision was made largely on environmental grounds because expansion of the airport would result in significantly increased emissions from expanded UK air travel. This week a new $3 billion Terminal 3 was opened at Indira Gandhi International Airport in New Delhi, a long-overdue modernization of this aging facility that is being hailed as an illustration of a new can-do attitude toward infrastructure projects in India. A high-speed rail link from the airport to Connaught Place may open later in the year.

On Thursday night I took Vermont law professor Tseming Yang to see the Washington Nationals play the New York Mets. Tseming has just taken a leave of absence from Vermont to serve as a deputy general counsel for the U.S. Environmental Protection Agency (EPA) where he is coordinating the agency’s handling of global environmental law issues. Having him here in Washington should make it easier for us to finish the manuscript for our casebook on global environmental law. On Saturday afternoon I took Alan Miller from the International Finance Corporation, who is one of the co-authors of my environmental law casebook, to the Nationals game. Both Tseming and Alan must be good luck because the Nats rallied from behind and won both games in walk-off fashion in the bottom of the ninth.

I was intrigued to see that the four South American quarterfinalists in tthe World Cup this week were the four countries (Paraguay, Uruguay, Brazil and Argentina) who were combatants in the War of the Triple Alliance from 1864-1870. That disastrous war, in which Paraguay faced off against the other three countries, killed 95 percent of the adult male population in Paraguay. Today Paraguay’s soccer team remains the country’s number one source of national pride - justifiably so given their narrow 1-0 loss to Spain in the quarterfinals, which left Uruguay the only South American country in the semifinals.